Saint-Gobain Abrasives Pty Ltd v McPHERSON - [2009] NSWCA 214

New South Wales

Court of Appeal

CITATION: SAINT-GOBAIN ABRASIVES PTY LTD v McPHERSON [2009] NSWCA 214

HEARING DATE(S): 29 May 2009

JUDGMENT DATE:
24 July 2009

JUDGMENT OF: Basten JA at 1; Campbell JA at 86; Simpson J at 87

DECISION: Appeal dismissed with costs

CATCHWORDS: EVIDENCE – weight and sufficiency of evidence – objective and expert evidence – statistical evidence – whether sufficient to compel rejection of witness testimony – whether constituted more than speculative possibility - PROCEDURE – federal jurisdiction – claim under Commonwealth law – application of State laws – sufficiency of Commonwealth law – whether Commonwealth law otherwise provides - TRADE AND COMMERCE – trade practices – consumer protection – liability of manufacturers or importers for defective goods – whether objective evidence disproved liability – whether objective evidence established statutory defences - WORDS AND PHRASES – "defective goods" – "manufacturer's liability"

LEGISLATION CITED: Constitution, s 109
Judiciary Act 1903 (Cth), ss 78B, 79, 80
Supreme Court Act 1970 (NSW), s 75A
Trade Practices Act 1974 (Cth), ss 74, 74A, 74AC, 74D, 75AA, 75AD, 75AK; Pt VIB
Uniform Civil Procedure Rules 2005 (NSW), r 51.53

CATEGORY: Principal judgment

CASES CITED: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; 67 NSWLR 9
Commonwealth v Mewett [1997] HCA 29; 191 CLR 471
Effem Foods Ltd v Nicholls [2004] NSWCA 332; (2004) ATPR 42-034
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182
Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388
Piper v JRI (Manufacturing) Ltd [2006] EWCA Civ 1344; All ER (D) 181
Solomons v District Court (NSW) [2002] HCA 47; 211 CLR 119
Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388

PARTIES: Saint-Gobain Abrasives Pty Ltd (Appellant)
Wayne McPherson (Respondent)

FILE NUMBER(S): CA 40308/08

COUNSEL: Mr D J Hooke/Mr D R Sulan (Appellant)
Ms S Norton SC/Ms E E Welsh (Respondent)

SOLICITORS: Wotton & Kearney (Appellant)
Byrdens Law Office (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5076/06

LOWER COURT JUDICIAL OFFICER: Elkaim DCJ

LOWER COURT DATE OF DECISION: 10 June 2008

CA 40308/08
DC 4076/06

BASTEN JA
CAMPBELL JA
SIMPSON J
24 July 2009

SAINT-GOBAIN ABRASIVES PTY LTD v McPHERSON

Headnote

On 19 October 2003, just as he was about to use an angle grinder to cut a piece of plastic, Mr McPherson ("the plaintiff") suffered a serious injury to his left hand, caused by the disintegration of the grinding disc when the grinder was switched on. The disc was new, and the plaintiff claimed that before disintegrating, it had not come into contact with any other object. The disc was manufactured by Saint-Gobain Abrasives Pty Ltd ("the appellant").

The appellant brought proceedings in the District Court for damages under ss 74D and 75AD of the Trade Practices Act 1974 (Cth). At trial, in addition to the testimony…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Saint-Gobain Abrasives Pty Ltd v McPHERSON and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 214
Decision Date: 24 July 2009

CaseChat Overview and Summary

Saint-Gobain Abrasives Pty Ltd appealed to the New South Wales Court of Appeal against a judgment of the primary judge in favour of the respondent, Mr. McPherson. The dispute concerned Mr. McPherson's claim for damages arising from the alleged supply of defective goods by Saint-Gobain Abrasives Pty Ltd, a claim brought under Commonwealth law.

The Court of Appeal was required to determine whether the objective and statistical evidence presented by the appellant was sufficient to compel the rejection of Mr. McPherson's witness testimony regarding the alleged defect. Furthermore, the Court had to consider whether this objective evidence established that the goods were not defective or, alternatively, that Saint-Gobain Abrasives Pty Ltd was entitled to statutory defences.

The Court of Appeal, in dismissing the appeal, found that the statistical evidence presented by the appellant did not, on its own, demonstrate that the goods were not defective. The judges reasoned that such evidence, while potentially relevant, did not necessarily negate the possibility of a defect in the specific goods supplied to the respondent. The objective evidence was not considered sufficiently compelling to override the primary judge's assessment of the witness testimony. The Court applied principles relating to the weight and sufficiency of evidence, particularly the interplay between expert and statistical evidence and direct witness accounts, in the context of consumer protection legislation.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SAINT-GOBAIN ABRASIVES PTY LTD v McPHERSON [2009] NSWCA 214
HEARING DATE(S):	29 May 2009
JUDGMENT DATE:	24 July 2009
JUDGMENT OF:	Basten JA at 1; Campbell JA at 86; Simpson J at 87
DECISION:	Appeal dismissed with costs
CATCHWORDS:	EVIDENCE – weight and sufficiency of evidence – objective and expert evidence – statistical evidence – whether sufficient to compel rejection of witness testimony – whether constituted more than speculative possibility - PROCEDURE – federal jurisdiction – claim under Commonwealth law – application of State laws – sufficiency of Commonwealth law – whether Commonwealth law otherwise provides - TRADE AND COMMERCE – trade practices – consumer protection – liability of manufacturers or importers for defective goods – whether objective evidence disproved liability – whether objective evidence established statutory defences - WORDS AND PHRASES – "defective goods" – "manufacturer's liability"
LEGISLATION CITED:	Constitution, s 109 Judiciary Act 1903 (Cth), ss 78B, 79, 80 Supreme Court Act 1970 (NSW), s 75A Trade Practices Act 1974 (Cth), ss 74, 74A, 74AC, 74D, 75AA, 75AD, 75AK; Pt VIB Uniform Civil Procedure Rules 2005 (NSW), r 51.53
CATEGORY:	Principal judgment
CASES CITED:	Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; 67 NSWLR 9 Commonwealth v Mewett [1997] HCA 29; 191 CLR 471 Effem Foods Ltd v Nicholls [2004] NSWCA 332; (2004) ATPR 42-034 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182 Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 Piper v JRI (Manufacturing) Ltd [2006] EWCA Civ 1344; All ER (D) 181 Solomons v District Court (NSW) [2002] HCA 47; 211 CLR 119 Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388
PARTIES:	Saint-Gobain Abrasives Pty Ltd (Appellant) Wayne McPherson (Respondent)
FILE NUMBER(S):	CA 40308/08
COUNSEL:	Mr D J Hooke/Mr D R Sulan (Appellant) Ms S Norton SC/Ms E E Welsh (Respondent)
SOLICITORS:	Wotton & Kearney (Appellant) Byrdens Law Office (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5076/06
LOWER COURT JUDICIAL OFFICER:	Elkaim DCJ
LOWER COURT DATE OF DECISION:	10 June 2008